Goes v. Gifford Sales & Service, Inc.

Dore, J.

Plaintiff sued defendants Gifford Sales & Service, Inc., and Breen for personal injuries sustained by him when a Ford automobile owned by Gifford Sales & Service, Inc., and driven by defendant Breen collided with an automobile operated by plaintiff at Port Ewen, Ulster County, New York, on August 22, 1938. Breen defaulted but testified at trial on behalf of the defendants. The jury rendered a verdict in plaintiff’s favor against both defendants for $2,250.

The issues of defendants’ negligence and plaintiff’s freedom from contributory negligence were clearly issues of fact and the evidence sustains the verdict.

The real issue on appeal is whether there was an issue of fact for the jury as to defendant Breen’s permission to use and operate the automobile involved in the accident.

Breen was an insurance agent who used an automobile in connection with his work out of town. He had owned ten or twelve automobiles, bought at second hand for use in his business, and had always secured a demonstration of a car before purchase. On or about August 19, 1938, Breen came to the Gifford Sales place of business in Saratoga Springs, New York, to purchase an automobile, took a Chevrolet out for a demonstration, had trouble with it, and brought it back. The next day, early on a Saturday morning, Breen returned to Gifford’s garage, the Chevrolet was not ready, but defendant’s mechanic was there and Breen told the mechanic he would take the Ford car involved in the accident. He said he did not intend to buy the Ford, but to use it until defendant-appellant got ready the Chevrolet which he intended to buy.

Appellant’s witness Thomas Morehouse, the mechanic in the garage, admitted he knew that Breen had the Chevrolet out for demonstration purposes in connection with its purchase; he denied he gave Breen permission to take the Ford, but admitted that he saw him take it, and on cross-examination testified that he did not remember whether or not Breen asked permission and that was his best recollection about the matter.

Gifford, who operated the Sales & Service, Inc., stated that he told Breen it was all right to take out the Chevrolet to see if he liked it, allowed him to do so without any cash deposit, did not limit Breen as to where he might take the Chevrolet car for demonstration purposes, and that he was anxious to make a sale.

The car was taken in August, 1938; the indictment for the theft of the car was not found until April, 1939; Breen admitted that he was asked to plead guilty and take a suspended sentence, and he appeared as a witness for defendant Gifford Sales at the trial.

Breen was driving back to the Gifford Sales place of business when the accident occurred, and stated that he intended to pay for the car that he was to'purchase. He also made a signed statement to the insurance company’s representative that the accident happened when he was driving in the Ford car which belonged to Gifford, an automobile dealer, who had “ given me the car to use for demonstration purposes.”

The trial court charged that it was for the jury to determine from all the evidence and proper inferences therefrom whether Breen at the time of the accident was using the Ford with the permission, either express or implied, of the owner, the defendant Gifford Sales, and instructed the jury to find in favor of that defendant if Breen was not operating the car with such permission. The court also charged section 1293-a of the Penal Law relating to the statutory larceny of an automobile, and said that the criminal proceeding was not res judicata in the sense that it was conclusive, but it was some evidence to be considered by the jury.

In denying the motion to set aside the jury’s verdict, the trial court held that the evidence adduced to show that no permission was given was for the jury ‘ ‘ because of improbability, interest of the witnesses or other weakness;” that the weight of the evidence and credibility of the witnesses were accordingly to be determined by the jury, and if it did not accept the evidence in defendant’s favor, the presumption of responsibility arising from ownership still remained, citing St. Andrassy v. Mooney (262 N. Y. 368, 372).

The trial court properly submitted the issue to the jury and properly, denied the motion to set aside the jury’s verdict. The rule is well settled that the credibility of interested witnesses, even if their testimony be uncontradicted, when contradiction is impossible and its truthfulness or accuracy open to a reasonable doubt, is exclusively for the jury. (Piwowarski v. Cornwell, 273 N. Y. 226, 229; Christie v. Vineburg, Inc., 259 App. Div. 342, 346 [First Dept.].) On this record defendant-appellant did not, as a matter of law, overcome the presumption.

The judgment appealed from should be affirmed, with costs.